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Because of the investigation into voting fraud embroiling a Cattaraugus County legislator, elections commissioners will not count absentee ballots when they begin a recanvass of primary election voting today.

"We agreed to challenge any absentee ballots and will not count them. Anyone who voted in Legislative District 6 for the Conservative, Independence and Right to Life parties by absentee ballot will not have their vote counted," Commissioners Richard O. Stevenson and Sue A. Fries said in a statement.

The district consists of the Towns of Hinsdale, Humphrey, Ischua, Lyndon and Portville.

Anyone who went to the polls to vote will have their vote counted as commissioners check votes cast on voting machines, Stevenson explained.

"Unless someone confronts us with a show-cause order from court, we won't be counting any absentees," Stevenson said.

Commissioners based their decision to eliminate all absentee ballots because of the Cattaraugus County Sheriff's Department investigation into charges that Legislator Larry G. Mack, D-Humphrey, filed false absentee-ballot applications with their office.

Mack was arrested Thursday and charged with 21 counts of first-degree offering of a false instrument for filing.

Stevenson, meanwhile, said that probe continues, with investigators going door-to-door in District 6, asking voters about papers they signed for absentee ballots they gave to Mack.

In statements to police, several voters said they signed blank forms.

On applications, voters had said they would be away on vacation and needed to cast an absentee ballot.

But when questioned by police, several of them said they did not have any vacation plans and did not understand the forms, and they raised concerns that they would be arrested for voting.

Mack, considered a maverick in the County Legislature, will appear before Little Valley Town Justice Joseph A. Dry on Wednesday for arraignment. Free without bail, he has hired Buffalo attorney John V. Elmore to represent him.

"He will be entering a plea of not guilty and waiving a preliminary hearing," Elmore said Monday. "(The case) will go to the grand jury."

District Edward M. Sharkey is expected to ask County Judge Larry M. Himelein to appoint a special prosecutor in the case. Sharkey has a conflict of interest because his salary and office operations are under the jurisdiction of county legislators.

Elmore said his client is innocent and called the charges politically motivated.

"(Mack's) intent was to assist citizens to exercise their right to vote," Elmore said.

"Oh, sure, he feels he stepped on some toes in the 10 years he's been a legislator and somewhat of maverick at times. He doesn't play by the good-old-boy rules. Many of the people involved in this are his political opponents," Elmore said.

Mack, once a candidate for sheriff, for many years has been an open critic of department operations, even launching his own investigations into patrol car accidents and employee discipline problems.

"He's innocent and confident he won't be convicted," Elmore said. "He only wanted to assist people to vote."

In a similar case, state police are conducting an investigation into irregularities used in filing absentee ballot applications in Legislative District 9, the City of Salamanca and the Towns of Salamanca and Red House.

Investigator John Ensell said he expects to complete his report this week into the absentee ballots used for the 1998 Democratic primary race.

Carmen J. Vecchiarella and Bradley Whitcomb faced each other for the party nomination. Vecchiarella won the primary and general election in November. He was appointed legislator to serve until Dec. 31, to fill a vacancy left by the death of Paul Wachter.

The investigation is being conducted for the Board of Elections, said Ensell, who expects to discuss his findings with the district attorney later this week.

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